The Queen (on the application of Zahir Ahmad) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | John Cavanagh |
| Judgment Date | 09 May 2018 |
| Neutral Citation | [2018] EWHC 1082 (Admin) |
| Docket Number | Case No: CO/3432/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 May 2018 |
Neutral Citation Number: [2018] EWHC 1082 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
John Cavanagh QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/3432/2017
Mr Guy Davison (instructed by Pasha Law Chambers) for the Claimant
Mr Andrew Byass (instructed by Government Legal Department) for the Defendant
Hearing date: 24 April 2018
Judgment Approved
John Cavanagh QC:
Introduction
In these proceedings, the Claimant, Mr Ahmad, who is a national of Pakistan, claims that he was unlawfully detained by the Defendant from 13 July 2017 until he was released from detention on 28 July 2017, 15 days later. The Claimant was detained shortly after he was notified that his application for an EEA residence card had been rejected. The Claimant was an overstayer whose application for leave to remain on Article 8 (family and private life) grounds had been rejected and certified as clearly unfounded. On 2 February 2016, the Claimant had been notified of this decision and that he was liable to detention and removal. He renewed his application under Article 8 on 29 February 2016, but this was also rejected, on 20 December 2016. In the meantime, the Claimant had applied for a residence card on the ground of his marriage to Ms Giogiana Magdalena Podeanu, a Romanian national with Treaty rights to work in the UK. This application was rejected on 6 June 2017 on the basis of the Defendant's view that the marriage was a marriage of convenience that had been entered into in order to enable the Claimant to remain in the UK. At the time of the Claimant's detention on 13 July 2017, he had appealed against the decision to refuse him a residence card and the appeal was pending. Subsequently, on 9 March 2018, the First-Tier Tribunal (Judge Miles) allowed the Claimant's appeal against the Defendant's refusal to issue him with an EEA residence card.
The Claimant was detained at a reporting appointment on 13 July 2017, and removal directions were served on him, informing him that he was to be removed to Pakistan on 16 July 2017.
On 14 July 2017, a claim for judicial review was filed on behalf of the Claimant with the Upper Tribunal. The claim challenged the lawfulness of the decision to remove the Claimant from the UK and to detain him pending his removal, and also sought interim relief to prevent his removal and to procure his release from detention pending the outcome of the judicial review proceedings. The claim form contained three grounds of challenge. These were that:
i) The decision to decline to grant the Claimant a residence card was unlawful because the decision that the Claimant's marriage was a marriage of convenience was irrational, and the decision-maker had failed to take account of relevant material;
ii) The Claimant could not lawfully be removed whilst he had an outstanding appeal before the First-Tier Tribunal in relation to the refusal to grant him a residence card; and
iii) His detention was unlawful.
The proceedings were transferred to the Administrative Court by Upper Tribunal Judge O'Connor because the claim included a claim for unlawful detention. On 16 July 2017, Nicola Davies J granted a stay of removal and on the same day the Defendant deferred the removal directions. As I have said, the Claimant was released from detention on 28 July 2017. Permission to apply for judicial review was refused on the papers by Karon Monaghan QC on 27 October 2017, but permission was subsequently granted on all three grounds by Helen Mountfield QC on 20 December 2018, at an oral renewal hearing.
The Claimant has been represented by Mr Guy Davison and the Secretary of State by Mr Andrew Byass. I am grateful to them both for their assistance.
The issues have narrowed considerably since permission was granted. As the Claimant's appeal in respect of the residence card has been allowed, there is no longer any current risk that he might be removed from the United Kingdom. The only remaining issue is the claim for unlawful detention.
Moreover, Mr Davison has made clear in his oral submissions that he is no longer contending that it would automatically have been unlawful to remove the Claimant from the UK whilst he had an outstanding appeal before the First-Tier Tribunal in relation to the refusal to grant him a residence card. He accepts, rightly in my view, that such an argument would stand no prospect of success in light of the ruling of the Court of Appeal in Bilal Ahmed v Secretary of State for the Home Department [2016] EWCA Civ 303 (to which I will return) to the effect that an appeal against a decision not to grant a residence card is ‘non-suspensive’, in that it does not operate so as to suspend the Defendant's power to detain or remove an appellant.
Mr Davidson's main argument is that the decision to refuse to grant the Claimant a residence card on 6 June 2017 was irrational or otherwise in breach of public law, and that this rendered the Claimant's detention unlawful.
Mr Davison contends that the decision to refuse the residence card was in breach of public law in the following respects:
i) It was irrational;
ii) The decision-maker failed to take account of all relevant considerations and/or to refer all relevant considerations in the decision letter; and/or
iii) The decision was vitiated by procedural unfairness. The sole or main reason for rejection was that the Claimant and Ms Podeanu had been inconsistent in some answers they had given when interviewed by a representative of the Home Office on 19 October 2016, but this had not been put to them before the decision on the residence card was taken and they had not been given an opportunity to give their explanation.
Mr Davison accepts that it is not in every case that an error of public law in relation to a relevant decision will render a person's detention unlawful, but he contends that, in the circumstances of the present case, the errors of public law in relation to the residence card rendered the Claimant's detention unlawful.
Mr Davison submits, in the alternative, that it was unlawful for the Defendant to act on the decision that the Claimant's marriage was a marriage of convenience by taking steps to detain him and to arrange for his removal from the UK, without giving the Claimant the right to respond to the allegation that his marriage was a marriage of convenience.
On behalf of the Defendant, Mr Byass contends that there was no error of public law in the decision in relation to the residence card. The First-Tier Tribunal is not limited in its appeal jurisdiction to examining decisions about residence cards to check if they were irrational or otherwise vitiated by errors of public law. The First-Tier Tribunal is entitled to look at all of the evidence, including any fresh evidence, and to come to its own decision as regards whether the appellant is entitled to a residence card. It therefore does not follow from the fact that the First-Tier Tribunal allowed the appeal that the Defendant must have made a ‘public law’ error in its original decision. Mr Byass submits that, in fact, there was no such error.
Mr Byass further submits that, even if there had been a public law error in relation to the Defendant's decision regarding the residence card, it was not such as to render unlawful the decision to detain.
In addition, he submits that there was no obligation for the Defendant to give the Claimant an opportunity to respond to the finding that his marriage was a marriage of convenience before he was detained.
Against that background, there are four questions for me to decide in relation to liability. These are:
i) The significance of the ruling in Bilal Ahmed;
ii) Was there an error of public law in the Defendant's decision of 6 June 2017 in relation to the residence card?;
iii) If there was an error of public law in relation to the residence card decision, did this error render the detention itself unlawful?; and
iv) Did the Defendant act in breach of the Claimant's public law rights by deciding to detain and remove him without first giving him an opportunity to answer the Defendant's concerns that his marriage was a marriage of convenience?
I will first summarise the relevant facts in greater detail and will then deal with these issues in turn.
Before doing so, however, I should deal with one other matter. Since the Claimant is no longer in detention, the only remedy available to him if he is successful is the remedy of damages.
This judgment deals only with the issue of liability. With the agreement of counsel, the hearing on 24 April 2018 dealt only with the legal arguments that are relevant to the issue of liability. It was agreed that the Court would proceed in this way, on the basis that, if the Claimant succeeds on liability, then directions can at a later date be given as regards the future conduct of the remedy stage of these proceedings. In many cases, where the only issue is damages for unlawful detention, it is appropriate to transfer the proceedings from the Administrative Court to the County Court. This applies in particular where it will be necessary for there to be disclosure and cross-examination of witnesses: see Swaran v Secretary of State for the Home Department [2014] EWHC 1062 (Admin), per Dingemans J at paragraphs 30–34. I have taken the view that it would be in the interests of justice and in accordance with the overriding objective to deal first with liability, and for this to be done in the Administrative Court, as the issues relating to liability are matters of legal argument of the sort that are habitually dealt with in the Administrative Court. If the Claimant...
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