R Oyekan v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Vos |
| Judgment Date | 01 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1553 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 December 2015 |
| Docket Number | Case No: C2/2014/4116 |
[2015] EWCA Civ 1553
IN THE COURT OF APPEAL (QUEEN'S BENCH DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Vos
Case No: C2/2014/4116
Mr Tiki Emezie acting as Solicitor Advocate (instructed by DCK Solicitors) appeared on behalf of the Appellant
The Respondent did not appear and was not represented
No of words: 2835
No of folios: 40
Introduction
This is the renewed oral application of the appellant's application for permission to appeal from the decision of Upper Tribunal Judge Freeman refusing judicial review of the Secretary of State for the Home Department's decision on 29 September 2013 to remove the appellant from the United Kingdom.
On 30 August 2009 the appellant entered the United Kingdom as a Tier 4 student migrant. On 3 February 2010 the appellant and a Mr Oluwaseun Oludayo Obanla ("Mr Obanla") were married by proxy in Nigeria under the Yaruba customs and tradition. On 14 December 2011 the appellant applied for a residence card as the spouse of Mr Obanla who had, by that time anyway, become a citizen of Sweden. The appellant relied on the marriage certificate. On 17 April 2012 the application for a residence card was refused by the Secretary of State on the grounds that the Nigerian Marriage Act precluded marriages by proxy.
On 29 August 2012 the appellant made a further application for a residence card, this time relying on a confirmation of traditional marriage and a declaration confirming the existence of a customary marriage. On 9 January 2013 the Secretary of State refused the application on the ground that "regardless of how the marriage was performed, whether it is a marriage under the Nigerian Marriage Act or a customary marriage, proxy marriages are no longer accepted in Nigeria" and on the grounds that the grounds that the appellant had failed to show that she was in a durable relationship with Mr Obanla. In fact, it appears that their marriage had broken up, or at least that they had separated some three years after it.
On 21 May 2013 First-tier Tribunal Judge Mensah dismissed the appellant's appeal against the Secretary of State's refusal of a residence card. He found that the burden was on the appellant to show that proxy marriages were still valid in Nigeria and recognised by the Nigerian government and that the appellant had failed to prove that or to prove that her relationship was durable, so she failed under regulations 7 and 8 of the Immigration (EEA) Rules 2006. She had not in fact attended at the tribunal hearing in an attempt to prove the durability of the relationship since, as I say, it appears that the couple had separated by that time.
On 29 September 2013 the Secretary of State decided to remove the appellant from the United Kingdom and detained her in custody pending that removal. On 14 October 2013 the appellant applied for judicial review of the Secretary of State's decision to remove the appellant from the United Kingdom. The matter came before Upper Tribunal Judge Judith Gleeson on 1 July 2014. She granted permission to apply for judicial review and made case management directions in the judicial review proceedings.
The case management directions that she made were as follows:
1. Within 14 days the Secretary of State was to provide detailed grounds for contesting the application and any written evidence as to Swedish law as to [the validity] of proxy marriages between Swedish and Nigerian citizens.
2. If no such grounds were received the Secretary of State would be taken as having accepted that the decision to remove the Nigeria on the basis of the First-tier Tribunal determination was unlawful.
3. If the Secretary of State lodged any grounds or evidence for contesting the claim, then within 21 days of her being provided with them the appellant should lodge a reply and her evidence, and in default she would be debarred from relying on evidence at the substantive hearing of the judicial review proceedings.
On 29 July 2014 the Secretary of State signed a consent order agreeing to an extension of time to file the evidence that had been required by Upper Tribunal Judge Gleeson until 4pm on 27 August 2014. No such evidence was filed, as it appears, by the Secretary of State by that deadline.
On 28 August 2014 the Secretary of State made a fresh decision refusing the appellant a residence card and giving her what she had not previously had, namely an in-country right of appeal, thus enabling the appellant to challenge the original decision of the First-tier Tribunal before another First-tier Tribunal with full knowledge of the evidential requirements of the two then recent decisions on proxy marriages; first, the Upper Tribunal in Kareem (proxy marriages — EU law) [2014] UKUT 24 and, secondly, the decision in TA and others (Kareem explained) Ghana [2014] UKUT 00316 (IAC).
The Secretary of State then, on 1 September 2014, wrote to the appellant offering that the judicial review application should be withdrawn on the basis of the fresh decision refusing a residence card with a right of appeal that she had made. The bundle does not contain a copy of that letter, but that seems to have been its content.
On 2 September 2014 the appellant's solicitors refused the Secretary of State's offer and said that she would proceed with the application for judicial review on three bases, namely that Upper Tribunal Judge Gleeson had reversed the burden of proof established by Kareem by requiring the Secretary of State to prove the invalidity of the marriage; secondly, that the Secretary of State had agreed to that position by making herself a party to the consent order by which she was bound; and, thirdly, that the Secretary of State failed to consider the full merits of the application under the...
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