Kreshnik Seferi and Angelina Zara v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Philip Mott |
| Judgment Date | 20 February 2018 |
| Neutral Citation | [2018] EWHC 287 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 February 2018 |
| Docket Number | Case No: CO/3566/2017 |
[2018] EWHC 287 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Mott QC
Sitting as a Deputy High Court Judge
Case No: CO/3566/2017
The Queen on the application of
Allan Briddock (instructed by Rahman & Co) for the Claimants
Zane Malik (instructed by Government Legal Department) for the Defendant
Hearing dates: 7 February 2018
Judgment Approved
Philip Mott QC:
Mr Seferi is an Albanian national, aged 30. He entered the UK illegally, he says in June 2014. Ms Zara was born in Albania in 1991, but is now a Greek national with permanent residence in the UK having exercised treaty rights since 2009. In April 2015 she was diagnosed with multiple sclerosis.
According to the Claimants they met in January 2015 and started to live together as a couple in September 2015. In December 2016 they decided to marry. On 3 February 2017 they gave notice of their intention to Wandsworth Borough Council. The Registrar, as required by the Marriage Act 1949, referred that to the Defendant. The Defendant invited the Claimants to an interview, to investigate whether the marriage was a sham. The Claimants say they did not receive the invitation, and in any event did not attend the interview. The Defendant issued a notice that they had not complied with the investigation into their proposed marriage, and it could not take place.
On 20 May 2017 the Claimants gave further notice of their intention to marry, this time to Haringey Borough Council. The Registrar again referred it to the Defendant. The Defendant decided to investigate and invited the Claimants to an interview. This time they attended. On 13 July 2017 the Defendant issued a notice stating that they had complied with the investigation. Accordingly, the marriage could have taken place in the UK.
However on the same day, 13 July 2017, the Defendant decided to remove Mr Seferi as an illegal immigrant, and detained him for that purpose. At the time of detention Mr Seferi was issued with a “one-stop” notice, inviting him to set out any grounds why he should be allowed to stay in the UK or not be removed. He did not complete the form setting out such grounds, or make any other application.
On 26 July 2017 the Defendant notified Mr Seferi that he would be removed from the UK on 3 August 2017. This prompted the issue of the current claim form on 2 August 2017, challenging the decision to maintain removal directions set for 3 August 2017. The original form gave the date of decision as 27 July 2017, but this was amended in manuscript to 13 July 2017 before issue.
The Grounds drafted by Mr Briddock sought extensive relief, as follows:
i) An order preventing the Respondent from removing Mr Seferi;
ii) A declaration that the Respondent's decision to classify the proposed marriage as a ‘sham’ was unlawful; or a declaration that it was not a ‘sham’;
iii) A declaration of unlawful detention, coupled with an order for the release of Mr Seferi and damages for his detention.
An interim order prohibiting Mr Seferi's removal was made by Singh J (as he then was) on 2 August 2017. He was released from detention on 16 August 2017, but on terms that required him to surrender his passport, so that he could not marry before this hearing.
Permission was granted to bring judicial review proceedings on 12 October 2017. Mr Briddock, in his Amended Skeleton Argument for this hearing, puts the remaining issues into three Grounds:
i) The Defendant has unlawfully found that the proposed marriage is a sham.
ii) The prevention of the marriage, by deeming it to be a sham and by detaining Mr Seferi, is an unlawful violation of the free movement rights of Ms Zara, and discriminates against her on the grounds of her nationality.
iii) The detention of Mr Seferi from 13 July 2017 to 16 August 2017 was unlawful.
The first of these issues is the key one, and Mr Briddock accepts that the other two cannot succeed unless the Claimants succeed on Ground 1. For reasons I give in this judgment, I have concluded that Ground 1 cannot succeed, and the other Grounds fall with it.
Law
The principles relating to removal and detention are not in dispute, and I do not need to set out the law extensively.
i) Mr Seferi has never had any leave to enter or remain in the UK. As an illegal immigrant, he may be removed by the Defendant. He has a valid Albanian passport, and there are no barriers to removal apart from this challenge.
ii) The Defendant has the power to detain Mr Seferi for the purpose of removal, subject to the well-established Hardial Singh principles.
iii) The power to detain cannot lawfully be used merely to prevent a marriage, even if it would be a sham marriage or a marriage of convenience.
Article 12 of the European Convention on Human Rights provides for a right to marry. That is not an absolute right, but it is a ‘strong right’ (see Lord Bingham in R (Baiai) v SSHD [2009] 1 AC 287, at paragraph [13]). But a national authority may properly impose reasonable conditions on the right of a third-country national to marry in order to ascertain whether a proposed marriage is one of convenience and, if it is, to prevent it (see Baiai paragraph [22]).
Following Baiai, amendments were made to the system for notifying the Defendant of proposed marriages in cases such as this. The current scheme derives from section 28H of the Marriage Act 1949, added by the Immigration Act 2014. I need not set it out in full. In essence, such a proposed marriage must be referred to the Defendant by the Superintendent Registrar. Then, under section 48(2) of the Immigration Act 2014, the Defendant “must decide whether to investigate whether the proposed marriage … is a sham”. If an investigation is conducted, section 50(4) of the 2014 Act requires the Defendant to “decide whether or not each of the relevant parties has complied with the investigation (the “compliance question”)”, and that must be done within 70 days (section 50(7)).
The term “sham marriage” is defined by section 24(5) of the Immigration and Asylum Act 1999. The first condition is that one of the parties is not a relevant national, and that definition covers Mr Seferi. Thereafter, section 24(5) requires that two conditions must be satisfied for the marriage to be classed as a sham:
(b) there is no genuine relationship between the parties to the marriage, and
(c) either, or both, of the parties to the marriage enter into the marriage for one or more of these purposes –
(i) avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules;
(ii) enabling a party to the marriage to obtain a right conferred by that law or those rules to reside in the United Kingdom.
“Marriage of convenience” is a term found in the Immigration (European Economic Area) Regulations 2016, which governs the issue of EEA Residence Cards. It is defined by regulation 2 as follows:
“marriage of convenience” includes a marriage entered into for the purpose of using these Regulations, or any other right conferred by the EU Treaties, as a means to circumvent –
(a) immigration rules applying to non-EEA nationals (such as any applicable requirement under the 1971 Act to have leave to enter or remain in the United Kingdom); or
(b) any other criteria that the party to the marriage of convenience would otherwise have to meet in order to enjoy a right to reside under these Regulations or the EU Treaties;
Under the 2016 Regulations, a spouse is classed as a “family member” (regulation 7), but a partner must prove a “durable relationship” to be classed as an “extended family member” (regulation 8). An EEA family permit must be issued to a family member, and may be issued to an extended family member (regulation 12). Thus marriage in a case such as this would confer significant immigration benefits on Mr Seferi.
It follows from the definitions above that a marriage of convenience under the 2016 Regulations may be entered into by a couple in a genuine relationship, and is different from a sham marriage as defined by the 1999 Act. That was the conclusion of this court in Molina v SSHD [2017] EWHC 1730 (Admin), which both parties before me accepted to be correct.
The Supreme Court case of Sadovska v SSHD [2017] 1 WLR 2926, dealing with the earlier Immigration (European Economic Area) Regulations 2006, makes clear that the immigration advantage must be the predominant purpose of the marriage, and it must be the purpose of them both (see paragraph [29]).
I should note that the Defendant can only conduct an investigation, and thereby delay the proposed marriage, if she has reasonable grounds for suspecting that the proposed marriage is a sham (s.48(5) of the 2014 Act), but there has been no challenge to the decision to investigate on that ground. Once a lawful investigation has been carried out, there is no bar to the information being used to determine also whether the proposed marriage is a marriage of convenience within the meaning of the 2016 Regulations.
The approach to such investigation is set out in the Defendant's guidance to staff entitled “Immigration Act 2014 – Marriage and civil partnership referral and investigation scheme: statutory guidance for Home Office staff” published in March 2015. The guidance appears to be restricted to the investigation of sham marriages, as defined by the 1999 Act, rather than the wider definition of marriages of convenience in the 2016 Regulations. I was referred in particular to paragraph 3.1, headed “Purpose of investigation”. It includes the following guidance:
“Where the investigation determines that the proposed marriage or civil partnership is a sham,...
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Upper Tribunal (Immigration and asylum chamber), 2019-02-25, EA/08503/2017
...marriage is a marriage of convenience is on the respondent”. She reminds herself of the principles in Sadovska [2017] UKSC 54 and Seferi [2018] EWHC 287 (at paragraph 41) and then at paragraph 42 again refers to the burden being on the respondent. It is maintained that “Respondent did not e......