R Gilberto Silva Santos v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMrs Justice Lang
Judgment Date23 March 2016
Neutral Citation[2016] EWHC 609 (Admin)
Docket NumberCase No: CO/6053/2012
CourtQueen's Bench Division (Administrative Court)
Date23 March 2016

[2016] EWHC 609 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Lang DBE

Case No: CO/6053/2012

Between:
The Queen on the application of Gilberto Silva Santos
Claimant
and
Secretary of State for the Home Department
Defendant

Zainul Jafferji (instructed by Burton & Burton) for the Claimant

Zane Malik (instructed by the Government Legal Department) for the Defendant

Hearing dates: 17 February & 2 March 2016

Mrs Justice Lang
1

The Claimant applies for judicial review of the Defendant's failure to issue him with an EEA residence card, pursuant to the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations 2006") and Directive 2004/38/EC ("the Directive"), and the Defendant's decision to detain him between January and June 2012, with a view to removing him from the United Kingdom ("UK"). He claims damages under both domestic and EU law.

History

2

The Claimant, whose date of birth is 28 November 1970, is a national of Brazil. He arrived in the UK on 3 November 2002 with entry clearance as a visitor. He remained in the UK unlawfully after the expiry of his visa.

3

In November 2008 the Claimant met his future spouse, Claudia Oliveira Batista, who is a Portuguese national. She had been residing and working in the UK since 2007/2008. They began living together in May 2009. They became engaged in November 2009 and married on 30 April 2010, by way of a proxy marriage that took place in Brazil. They celebrated their wedding in the UK. Their relationship broke down in October 2010, and she moved out of their home in November 2010.

4

On 19 July 2010, the Claimant applied for an EU residence card on the basis of his marriage to an EU citizen. Following the breakdown of his relationship with his wife, there followed a series of communications with the Defendant, in which she indicated that he had submitted insufficient evidence to support his application for a residence card. However, no decision on his residence card application was made, and so a right of appeal to the First-tier Tribunal (FTT) was not triggered.

5

On 29 January 2012, the Claimant was arrested as an over-stayer and he was detained by the Defendant with a view to his removal from the UK. After his first judicial review claim failed, he filed this application for judicial review on 11 June 2012, in which he challenged the Defendant's failure to make a decision granting him a residence card since 19 July 2010, and in particular the Defendant's most recent decision letters of 12 March, 27 April and 10 May 2012. He challenged the lawfulness of his proposed removal and his detention.

6

By way of interim relief, Burton J. granted a stay on removal on 25 June 2012. On 30 June 2012, the Defendant granted him temporary admission, subject to conditions, and released him from detention.

7

Pursuant to an order of the court at an oral permission hearing on 18 October 2012, the Claimant made a further application for a residence card on 16 November 2012. The Claimant's application for a residence card was refused by the Defendant on 11 July 2013, on the ground that the Claimant had not submitted a valid identity card or passport for Ms Batista, and therefore had failed to establish that he was a family member of an EEA national. The Claimant had submitted the photocopy of Ms Batista's Portuguese identity card which had previously been submitted in July 2010, but which had since expired.

8

The Claimant appealed to the FTT and his appeal was allowed in a determination promulgated on 12 March 2014. At the hearing, the Home Office Presenting Officer did not seek to defend the decision, nor did he challenge the Claimant's evidence.

9

The Claimant was issued with a residence card by the Defendant some two months later, on 21 May 2014.

10

Pursuant to the order of 18 October 2012, counsel for the Claimant drafted amended grounds for judicial review dated 31 January 2013 1 explaining that they were not comprehensive because the Defendant had not yet made disclosure in response to the Claimant's subject access request and public funding had only just been approved. Those grounds were filed by the Claimant's solicitor on 21 February 2013, together with an explanation for the delay and an application for a variation of the consent order to extend time for their service. The Court varied the order accordingly on 18 March 2013. The Defendant made disclosure of some documents on 17 June 2013 pursuant to the subject access request.

11

The judicial review claim was stayed by consent, pending the appeal to the FTT, in an order dated 29 August 2013. The Claimant was ordered to file re-amended grounds of claim, if so advised, within 21 days of the final outcome of the appeal. It is apparent from the party and party correspondence that the amended grounds, drafted by counsel on 22 May 2014, were sent to the Defendant, though the Court has no record of the amended grounds being filed. To regularise the position, I will record in the order which I make at the conclusion of the claim that, without prejudice to the Claimant's contention that the re-amended grounds were filed at Court in 2014, the re-amended grounds were filed at the hearing on 17 February 2016.

12

On 5 October 2015, the Court made a consent order, in which the Claimant was granted permission to apply for judicial review. Directions were given for the filing of the Defendant's detailed grounds and evidence within 35 days of the date of the order. The Defendant's detailed grounds were only filed and served with her skeleton argument on 16 February 2016, the day before the hearing. Pursuant to an order which I made on 17 February, the Defendant filed and served a revised composite skeleton argument and detailed grounds of resistance on 24 February 2016, together with some additional disclosure.

Grounds of challenge

13

The Claimant submitted that the Defendant acted in breach of the rights granted to him under the Directive and the EEA Regulations 2006 by:

i) Failing to issue a residence card to him, in breach of Articles 9 and 10 and regulation 17, at any time between the date of his first application on 19 July 2010 and the eventual issue of a residence card on 21 May 2014, in circumstances where he was, throughout that period, entitled to a residence card, as indicated by the decision of the FTT in March 2014.

ii) Failing to determine his application dated 19 July 2010 within 6 months, as required by Article 10(1) and regulation 17(3).

iii) Failing to make a lawful decision on his applications for a residence card on 19 July 2010, 24 November 2010 and 28 June 2011 (if, in the alternative, these were to be treated as separate applications), 12 March 2012 and 27 April 2012. These failures resulted in the Claimant being denied:

a) a formal notification of the reasons for the decision and rights of appeal, granted by Articles 15 and 30 and regulations 4 and 5 of the Immigration (Notices) Regulations 2003; and

b) a right of appeal to the FTT, granted by Articles 15 and 31 and regulation 26.

iv) Failing to issue a lawful notice of decision on 29 January 2012 with respect to the decision to remove him from the UK. This failure resulted in the Claimant being denied a right of appeal to the FTT against the decision to remove him, granted by Articles 15 and 31 and regulation 26.

v) Placing restrictions on his right to reside after 30 June 2012, including preventing him from working; preventing him from accessing any public funds or other assistance that would be available to him as a person lawfully resident in the UK; requiring him to report and preventing him from travelling.

vi) In respect of his residence card application dated 16 November 2012:

a) failing to issue a certificate of application; and

b) failing to determine it within 6 months,

as required by Article 10(1) and regulation 17(3).

14

The Claimant further submitted that the Defendant had no lawful authority for his detention and attempted removal in 2012. Any consideration of his removal, and detention pending removal, had to be considered under the Directive and the EEA Regulations 2006, and the relevant policies in force. However, the decision to detain and remove him was made under domestic immigration law without any proper regard to his right of residence as a family member of an EEA national exercising Treaty rights in the UK.

15

The Defendant had no power to detain the Claimant under regulation 24 of the EEA Regulations 2006 because she had no reasonable grounds for suspecting that he was someone who could be removed under regulation 19(3)(a) on the grounds that he did not have a right to reside in the UK under the EEA Regulations. The Defendant knew at the time of detention that the Claimant had entered into a valid marriage with a Union citizen who was residing and working in the UK, but had separated from her, and documentary evidence of those facts had been provided to her. In these circumstances, the only issue upon which there could conceivably have been any doubt was Ms Batista's current residence and work status. Under Article 14(2), the Defendant should have taken steps to verify Ms Batista's status, and given the Claimant an opportunity to provide evidence of Ms Batista's continued exercise of her Treaty rights, before detaining him.

16

If the Defendant had complied with the Directive and the EEA Regulations 2006 and granted the Claimant a right of appeal to the FTT against the decision to remove him, and made appealable decisions in response to his applications for a residence card on 12 March and 27...

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