The Queen (on the application of Luis Alberto Vaca Molina) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Judge Grubb |
| Judgment Date | 12 July 2017 |
| Neutral Citation | [2017] EWHC 1730 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4758/2015 |
| Date | 12 July 2017 |
[2017] EWHC 1730 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Judge Grubb
(Sitting as a Deputy Judge of the High Court)
Case No: CO/4758/2015
Mr A Jafar (instructed by Thoree & Co Solicitors) for the Claimant
Ms S Idelbi (instructed by the Government Legal Department) for the Defendant
Hearing date: 25 th May 2017
Approved Judgment
INTRODUCTION
The claimant is a Bolivian national who is 42 years old. He first arrived in the United Kingdom in June 2002 with leave as a visitor for a period of six months. Thereafter, he overstayed. On 11 December 2005, he was served with a decision to remove him having been arrested for the offence of assault occasioning actual bodily harm for which he was cautioned. On 13 December 2005, the claimant was removed to Bolivia.
In April 2007, the claimant re-entered the UK illegally using a false Bolivian passport. He has remained in the UK since that time.
The claimant claims to have met an Italian national, Bianchi Salguero, in April 2013 and they began a relationship in October 2013. The claimant claims that they moved in together in September 2014.
On 26 February 2015, the Lambeth Register Office sent a "Report of a Suspicious Marriage or Civil Partnership/Overstayer/Illegal Worker" in relation to a marriage due to take place between the claimant and Ms Salguero on 19 May 2015 (see Defendant's Supplementary Bundle ("DSB") at pages 82–85). As a consequence, immigration officers attended the Lambeth Register Office on 19 May 2015. Both the claimant and Ms Salguero were interviewed by Immigration Officers (Immigration Officer Gridler and Immigration Officer Mangan respectively). Following the interviews, the claimant was served with notice IS.126 (DSB at page 126) which stated that it had been concluded that:
"although there is a relationship going on it does not show that they have a relationship akin to marriage. [The claimant] will benefit from his union with [Ms Salguero] and even though this may not be a sham marriage it is definitely a marriage of convenience to gain Immigration advantage."
As a consequence, the claimant's marriage to Ms Salguero did not take place and the claimant was detained and served with appropriate notices for his removal.
On 21 May 2015, the Secretary of State set removal directions against the claimant for 5 June 2015.
On 22 May 2015, the claimant completed a "Statement of Additional Grounds" in which he made a claim under the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003 as amended) (the "EEA Regulations 2006") for an EEA residence card based on his relationship with Ms Salguero and he also relied upon Art 8 of the ECHR.
On 28 May 2015, the claimant's representatives sent the Secretary of State a pre-action letter.
On 3 June 2015, the claimant's EEA application was returned for non-payment of a fee which was corrected, on the same day, by the claimant.
On 4 June 2015, judicial review proceedings were lodged in the Upper Tribunal challenging the Secretary of State's decisions not to allow the claimant's marriage to go ahead; to detain the claimant and to set directions for his removal.
On that same day, the Upper Tribunal (UT Judge Craig) ordered a stay of the claimant's removal.
On 12 June 2015, the Secretary of State served a response to the pre-action protocol letter and, in addition, refused and certified the claimant's human rights claim as clearly unfounded under s.94 of the Nationality, Immigration and Asylum Act 2002 (the "NIA Act 2002").
On 24 June 2015, the claimant was released from detention.
On 20 July 2015, the Secretary of State filed summary grounds of defence.
On 21 August 2015, the Secretary of State refused the claimant's application for an EEA residence card based upon his relationship with Ms Salguero.
On 2 October 2015, the Upper Tribunal (UT Judge Warr) transferred current proceedings to the High Court as the claimant was challenging his detention.
On 2 November 2015, Timothy Brennan QC (sitting as a Deputy High Court Judge) refused permission on the papers.
On 11 November 2015, the claimant renewed his application for permission.
On 13 January 2016, the application was stayed by Philip Mott QC (sitting as a Deputy High Court Judge) pending the conclusion of the claimant's appeal to the First-tier Tribunal against the refusal of his EEA residence card.
On 1 November 2016, the First-tier Tribunal (FTT Judge Rothwell) allowed the claimant's appeal against the refusal to issue him with a residence card as an extended family of an EEA national under the EEA Regulations 2006 as she was satisfied that the relationship between the claimant and Ms Salguero was a "genuine and durable relationship".
On 17 January 2017, Michael Fordham QC (sitting as a Deputy High Court Judge) granted the claimant permission to bring these proceedings. In granting permission generally, the judge was particularly concerned that it was arguable that the decision to impede the claimant's marriage and thereafter to detain him had been premised on a mistaken understanding that there was a difference between a "sham marriage" and a "marriage of convenience" which were, in truth, synonymous in substance.
THE CLAIM
The claimant has, throughout these proceedings, sought to challenge the decision to prevent his marriage on 19 May 2015, his detention between 19 May and 24 June 2015 and the decision to remove him made on 21 May 2015. The way in which the claimant has, however, put his case has evolved over time.
Preventing the Claimant's Marriage
In relation to the prevention of his marriage, the Grounds for Judicial Review set out in the application rely upon his right to marry under Art 12 of the ECHR and, on the basis that he had a genuine and subsisting relationship with Ms Salguero, that there was no lawful justification or reason to prevent the marriage.
In the skeleton argument of the claimant's (then) Counsel submitted at the oral renewal, that claim is maintained. In the skeleton argument of Mr Jafar, who represented the claimant before me, the basis of the claim is again renewed although the emphasis is now on the point made by Michael Fordham QC in granting permission that the defendant has misconstrued the meaning of a "marriage of convenience" which, like a "sham marriage", cannot exist if there is a genuine relationship. Mr Jafar in his oral submissions maintained that basis for contending that the decision to prevent the claimant's marriage was unlawful. However, he also contended that the Immigration Officers (acting on behalf of the Secretary of State) had no lawful basis for concluding there was a "reasonable suspicion" that the marriage was a sham or one of convenience based upon the notice sent by the Lambeth Register Office under s.24 of the Immigration and Asylum Act 1999 ("the IA Act 1999").
Neither of these latter two points is made in the claimant's grounds, although the former was at the core of the decision to grant permission. The latter point was not raised until the hearing before me. It was not even raised in Mr Jafar's skeleton argument dated 4 May 2017 prepared for the hearing.
Detaining the Claimant between 19 May and 24 June 2015
In relation to the challenge to the claimant's detention between 19 May and 24 June 2015, the Grounds for Judicial Review in the claimant's application argue his detention was unlawful on the basis that he had a right of residence under EU law as the "family member" of an EEA national and further he had an outstanding application for a residence card under the EEA Regulations 2006.
The skeleton argument submitted by the claimant's (then) Counsel for the oral renewal hearing, contends that the claimant's detention was unlawful as he had a genuine relationship and given the fact that UT Judge Craig had granted a stay on removal on 4 June 2015 and that the claimant was an "extended family member" of an EEA national with an outstanding application for a residence card on that basis, his removal was not imminent and therefore, on Hardial Singh principles, was unreasonable and unlawful.
In his skeleton argument for the hearing before me, Mr Jafar also relied upon the claimant's right to reside in the UK as a family member of an EEA national and that, as such, he could not be removed other than in accordance with the "public policy" requirement in reg 19 of the EEA Regulations 2006. Further, reliance is placed upon the contention that the defendant misunderstood, and therefore misapplied, what amounts to a "marriage of convenience". Finally, in the circumstances, on Hardial Singh principles, the Secretary of State could not lawfully conclude that the claimant's removal was imminent and that therefore his detention was reasonable and lawful.
At the hearing, Mr Jafar placed no reliance upon the contention that the claimant's detention was unlawful as he had an EU right to reside in the UK or that his application and subsequent appeal in relation to an EEA residence card prevented the claimant's removal and therefore made his detention unreasonable and unlawful. Instead, he focused upon the Immigration Officer's decision on 19 May 2015 that the claimant's marriage was one of convenience. He contended that if, as the Immigration Officer had accepted, the claimant had a genuine relationship then that could not be a "marriage of convenience" and it was unlawful to detain him.
Further, Mr Jafar subjected the Immigration Officer's reasoning in the decision of 19 May 2015 that led to the conclusion that the...
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