Secretary of State for the Home Department v Benedetto Vassallo
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston,Lady Justice Gloster,Lord Justice Lloyd Jones |
| Judgment Date | 07 December 2016 |
| Neutral Citation | [2016] EWCA Civ 1352 |
| Docket Number | Case No: C2/2014/4116 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 December 2016 |
[2016] EWCA Civ 1352
Lord Justice Lloyd Jones
Lady Justice Gloster
Lord Justice Cranston
Case No: C2/2014/4116
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr T Emezie (instructed by the DCK Solicitors) appeared in person on behalf of the Appellant
Mr Z Malik (instructed by the Government Legal Department) appeared in person on behalf of the Respondent
Introduction
This is an appeal from the decision of Judge Freeman sitting in the Asylum and Immigration Chamber of the Upper Tribunal (UTIAC) made on 27 July 2014. In that decision he dismissed the appellant's judicial review claim on the basis that there was an alternative avenue for her to advance her case in the form of an appeal to the First-tier Tribunal. He also held that there should be no order as to costs. In effect the appellant contends that the judge was wrong in deciding not to grant a claim for an EEA residence card given the way her case had proceeded. The judge was also in error, it is said, in refusing to award her costs.
Background
The background is that the appellant is a Nigerian and arrived in the United Kingdom in August 2009 with entry clearance as a student, valid until 2 October 2010. On 2 October 2010 she made an application for further leave to remain as a student but that was refused with a right of appeal. The appellant did not appeal but remained in the United Kingdom unlawfully.
On 14 December 2011 the appellant applied for a residence card on the basis of her proxy marriage to her sponsor, an EEA Swedish national of Nigerian heritage. The marriage was said to have taken place on 3 February 2010 according to Yoruba custom and tradition. On 17 April 2012 the Secretary of State refused the application under regulation 7 of the Immigration (European Economic Area) Regulations 2006, 2006 SI No 1003 as amended ("the 2006 Regulations"). She concluded that the proxy marriage was not valid under the Nigerian Marriage Act as neither the appellant nor the sponsor had been present at the marriage ceremony or resident in Nigeria before the wedding.
On 29 August 2012 the appellant made a further application for a residence card. This time she relied on a marriage certificate giving the date of the registration of the marriage as 3 February 2011. The appellant and her sponsor maintained that they had been living together for more than two years and provided documentary evidence including a tenancy agreement, a flat-share agreement, wage slips for the sponsor, wage slips for the appellant and bank statements. The sponsor's address in the documents was 18 Sulkin House. The appellant's documents listed her address as 31 Layfield Road. The only document with both living at the same address was the tenancy agreement for 31 Layfield Road.
On 9 January 2013 the Secretary of State refused the application with an in-country right of appeal. In the refusal the Secretary of State stated that proxy marriages were no longer accepted in Nigeria whether it was a marriage under the Nigerian Marriage Act or a customary marriage. The Secretary of State also said that apart from the tenancy agreement there was no evidence that the appellant was in a durable relationship with the sponsor. Documents such as the tenancy agreement were easy to obtain. The letter concluded that the appellant was unlawfully in the country and should leave.
First-tier Tribunal decision
The appellant appealed to the First-tier Tribunal. The hearing was on 9 May 2013. The appellant did not appear and was not represented. However, there was a statement from the appellant signed and dated 7 May 2013 in which she described her marriage and rejected the Secretary of State's analysis of it and the factual position the Secretary of State had adopted. It said:
"The decision maker also sought to justify its decision by suggesting that my address was different from my husband's. This reason is misconceived and is attributed to the decision-maker's omission of the contents of our tenancy agreement."
That statement did not record, as it should have, that the appellant and the sponsor had separated some months earlier in March of 2013.
First-tier Tribunal Judge Metzer dismissed the appeal on 21 May 2013. He said that the Country Information and Guidance Report ("CIG") for Nigeria for 2011 accepted that proxy marriages were recognised under Nigerian customary law. However, the 2012 version, relying on US State Department information, stated that technically both parties had to be physically present at the same location to sign certain documents, and that proxy marriages had ceased to be valid but still occurred. Judge Metzer said this:
"Therefore, although there is some lack of clarity, accepted by Mr Marsh on behalf of the Secretary of State, the most recent information suggests that proxy marriages no longer are valid. Although the appellant suggests in her witness statement that it is for the respondent to establish that they are not valid, that as a matter of burden and standard of proof is incorrect. The burden is upon the appellant to show that proxy marriages are still valid and recognised by the Nigerian government."
The judge then said this on the factual basis of the appeal:
"The appellant chose not to attend the hearing to resolve the issues concerning durability of the relationship, in particular the difficulties in relation to two different addresses as evidenced in the wage slips and bank statements. Although the relationship may well be a close one, the appellant and the sponsor did not attend to give further evidence in relation to either the present status of proxy marriages or to the durability of their relationship."
There was then an application for permission to appeal to the Upper Tribunal on 12 June 2013. That was refused at the first level. The appellant did not renew her application to appeal to the Upper Tribunal as she was entitled to do. She did not leave the United Kingdom but remained unlawfully as an overstayer.
Unsurprisingly the Secretary of State made a decision on 29 September 2013 to remove the appellant from the United Kingdom under section 10 of the Immigration and Asylum Act 1999 ("the 1999 Act"). That decision carried an out-of-country right of appeal. The appellant's solicitor sent letters to the Secretary of State over the next couple of weeks on her behalf. The appellant was detained with a view to her removal from the UK.
The judicial review
The appellant issued judicial review proceedings in the Administrative Court on 14 October 2013, seeking to challenge the decision the Secretary of State had taken under section 10 of the 1999 Act. The grounds drafted by her current solicitors opened with a challenge to the Secretary of State's decision not to provide an in-country right of appeal. That point was hopeless since this court has consistently said that an out-of-country right of appeal is adequate unless the case is exceptional; see RK (Nepal) v Secretary of State for the Home Department [2009] EWCA Civ 359 and R (Mehmood and Ali) v Secretary of State for the Home Department [2015] EWCA Civ 744. This was far from being an exceptional case.
The first of the judicial review grounds raised the issue of the marriage. That had been dealt with by the First-tier Tribunal and had not been pursued before the Upper Tribunal. It was simply not appropriate to raise it in a judicial review application at that point. Nevertheless, those drafting the grounds took issue with Judge Metzer's decision on both the law and the facts. As regards the law, the grounds said that the CIG for Nigeria for 2013 "clearly states that the US report was wrong"; as to the facts, it was said, the judgment contained "a catalogue of mistakes". The second of the grounds addressed Article 8 of the European Convention on Human Rights ("the Convention" or "ECHR"), in particular because the appellant had a brother and sister-in-law in Britain. Article 8 had not been mentioned previously. It was a point totally without merit. No better was the third ground, that the Secretary of State had failed to apply her own policy on married persons. Since the Secretary of State had never accepted that the appellant was properly married, it is difficult to see how the policy applied.
On 22 October 2013 the Secretary of State wrote rejecting the appellant's Article 8 grounds. As regards the EEA marriage claim, it reminded the appellant that this had been fully considered, i.e. by the Tribunal. The letter also recorded the following:
"On 29 September 2013, when your client was detained, she claimed to be in a relationship with a Nigerian/Swedish dual national. She claimed that he was in Sweden on business at the time. However, she failed to provide any evidence to substantiate or support her claim to have a partner in the UK. The detaining officer further noted that your client's room and belongings showed no real evidence of her claimed partner residing at her address and she was unable to confirm her partner's job or provide documentation confirming that he resided with her."
Of course the appellant now accepts that the relationship had broken down six months previously, so it was not surprising that there was no evidence of the sponsor at her residence.
The Secretary of State filed an acknowledgement of service and summary grounds of defence on 18 December 2013. In them she rejected ground one, in particular pointing out...
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