Mbebe's application (Nonzukiso)
| Jurisdiction | Northern Ireland |
| Judge | Gillen J |
| Judgment Date | 29 September 2008 |
| Neutral Citation | [2008] NIQB 108 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 29 September 2008 |
| Year | 2008 |
1
Neutral Citation No.: [2008] NIQB 108 Ref:
GIL7248
Judgment: approved by the Court for handing down Delivered:
29/09/08
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________
Mbebe’s application [2008] NIQB 108
AN APPLICATION FOR JUDICIAL REVIEW BY NONZUKISO MBEBE
________
GILLEN J
Application
[1] The applicant is a female South African national and the respondent is
the UK Immigration Service. She seeks judicial review of a decision by the
respondent on 28 July 2007 to declare her an unlawful entrant who was
subject to removal and detention. By way of an amended Order 53 statement
of 30 January 2008 the applicant further seeks a declaration that Local
Instruction 1/2007 issued by the respondent is unlawful. Her grounds are
essentially that her detention is in breach of EC law and in particular contrary
to Directive 2004/38 EC (“the Directive“) and the Immigration (European
Economic Area) Regulations 2006. Finally the applicant, through her counsel
Mr Lavery asserts that the respondent has acted in bad faith in processing her
case.
Background
[2] The applicant is the holder of a UK residence card valid until
30 January 2011. She has undergone a ceremony of marriage in Dungannon
on 30 July 2004 with Bruno Parente a Portuguese national who, she alleges, is
working and living in the UK. The respondent asserts that this was a sham
marriage of convenience and the residence card is invalid.
2
[3] There was evidence that prior to the date of her detention the applicant
had entered the UK on a number of occasions in particular from Paris at
Belfast International airport on 5 July 2007. She had subsequently travelled to
Scotland. On 28 July 2007 at 7.00 am the applicant was stopped by
Immigration Officers at Belfast Docks having arrived from Scotland. She
presented a South African passport which contained a 1 year EEA family
permit issued in Pretoria valid from 4/10/04 - 4/10/05. On the passport was
a Home Office stamp granting permission to remain until 30 September 2011.
The permit was based on her marriage to Bruno Parente. She was questioned
and served with a form IS151A, Notice of a Person Liable to Removal, Form
IS91R, Reasons for Detention and Bail Rights and Notice of Immigration
Decision. The notices were served on the basis she was a person who had
used deception in seeking leave to remain.
[4] The applicant contacted her legal representative Ms Muldoon of
Drinan & Co Solicitors who wrote to the respondent challenging the
lawfulness of the applicant’s detention on the basis, inter alia, that she was
entitled to reside in the UK by virtue of rights derived under EC law.
[5] The respondent, by way of letter dated 29 July 2007 signed by
A Garrett Immigration Officer, challenged the validity of the residence card of
the applicant on grounds that:
(a) the applicant has not resided with her husband in this country for a
number of years;
(b) she is unable to provide any evidence of a subsisting relationship;
(c) she is unable to provide any evidence that her husband is exercising
his treaty rights by residing in the UK.
[6] That letter went on to assert that the applicant had failed to declare the
following matters:
(a) she had previously entered the Republic of Ireland and claimed
asylum in the identity of Ziyanda Moyo date of birth 23 March 1976;
(b) a Deportation Order was issued by the Irish Authorities on this
identity on 20 September 2001;
(c) she entered the UK unlawfully across the Irish land border on or
around January 2004;
(d) the Irish authorities issued a further deportation order on 22 April 2004
in the name of Lark Nonzukiso Mbebe date of birth 23 March 1976;
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